I see other attorneys and people representing themselves make the same mistakes over and over in Orange County Superior Court. I therefore present this list of frequently asked questions, setting forth information you need and tips on how to avoid the pitfalls of Superior Court.

Some of these questions may seem surprising, but it is to be expected that someone who has never had any involvement with the court may have no clue how things work.
Of course, it should go without saying that none of
this can be taken as legal advice, nor should you
base any decision on anything I have said. I like
to be able to offer my thoughts on a matter in the
hope that they may help guide the potential client
toward a solution, but for actual legal advice I
would need to be retained in order to take the time
to review your situation and any supporting
documentation in detail.

When I received the
summons and complaint, there was a form attached
that said my trial date is in about four months.
Can I just wait until then, show up and tell my
side of the story?

That's not the trial date. For some reason, when some people receive a summons and complaint, their eyes glaze over and they can't or won't read the papers to see what they are supposed to do. The summons clearly states that you must file and serve an answer within 30 days (it's only FIVE days for some complaints, so read carefully). Inexplicably, that part never gets read. Instead, the defendant turns to what is called the notice of case management conference,
where a date is stamped in big black ink. The
document explains that is the date of the Case
Management Conference, and also explains that the defendant has only 30
(or five) days to answer. For whatever
reason, many people think that is a hearing date,
and that they can just show up on that date.
The Case Management Conference is a procedural
hearing, designed only to make certain the case is
moving forward, and sometimes to set a trial date.
Neither party is permitted to talk to the court
about the merits of the case. In fact, often
the judge never takes the bench, and the process is
handled by the clerk. If you do not file an
answer to the complaint or respond in some other
proper way, and wait until the Case Management
Conference to do anything, a judgment will have already been taken against you
and plaintiff will be in the process of seizing all
your worldly belongings. In fact, isn't that
your car being towed away right now?

I found a summons and complaint stuck under the windshield wiper of my car
(or nailed to my door, or left at my office). I know that's not proper service, so do I need to file an answer?

Playing the, "I wasn't properly served" game is fraught with peril. If you receive a complaint, even if it was nailed to your door, never, ever ignore it.
As you'll see, it usually doesn't make sense to
fight over service.

There are a number of urban legends about service. Many people think it's like a game of tag, and that service is ineffective unless the process server gets the defendant to take
the documents in his or her hand. That's a dangerous myth. It's not even true that the process server has to personally serve you. By law, the process server is supposed to try to personally serve you. If he does find you, he is supposed to tell you the nature of the documents, so that you won't think it's someone trying to hand you religious literature. So, the process server will walk up
to you and say, "Mr. Rogers, this is a summons and complaint." If you take it from him, great, if not, he can drop it at your feet. He could even approach you in your car, make the statement, and stick it under your windshield wiper. So, yes, sticking it under your windshield wiper can be effective service.

If he makes three attempts to serve you, but can't find you at home or work, he can substitute serve you by giving it to someone at your home
who is over the age of 17. He must then mail you a copy as well, to make sure you get it even if your no-good adult son that answered the door never gives it to you.

That process server will now prepare a proof of service, attesting to the fact that you were served. Thirty days later (40 days for substituted service), the opposing party will take a default against you, and then seek an unopposed judgment. In one case, a client came to us who had ignored a complaint that involved $35,000. With no opposition, the plaintiff was able to convince the court to award $1.2 million. We were able to get it reversed, but not without much effort.

Indeed, it
can sometimes be a brilliant strategy to answer
before you are ever served. Some lawyers file
a complaint to preserve the statute of limitations
but then hold it for three or four months because
they want to accomplish something before they serve
you. Perhaps there is a witness crucial to
the case they are trying to locate, or the
corporation that is suing you is no longer in good
standing and the attorney needs to get it revived.
If you answer before the attorney is ready to
proceed, it can really put a kink in his or her
litigation strategy. Of course, you would
only do this if it made sense given the specific
circumstances, otherwise you might expose yourself
to unnecessary litigation.

If you are improperly served, don't ignore it. Go to court and fight the service if it makes you feel better. You'll still be served, probably in the hallway as you leave. Judges in the Orange County Superior Court are more interested in whether there was constructive notice as opposed to worrying about the technical requirements of service. You or your attorney will look foolish when you stand in front of the judge and proclaim, "your honor, I was never served with the complaint that . . . I'm . . . um . . . holding . . . here in my hand." It's usually
better and cheaper to just answer the complaint. Many amateur attorneys think that good advocacy requires them to fight everything. A good attorney knows how to pick the battles.

I just got
served with a complaint that the judge will be able
to tell just from reading it that the case is
without merit. I mean, for God's sake, the
plaintiff says I'm from Mars and that I'm mentally
attacking him in his dreams. Do I really need
to respond to the complaint?

Yes, you must
respond to the complaint. The question is
reasonable, but based on a false assumption.
It is essential that you understand that NO ONE
AT COURT WILL EVER READ THE COMPLAINT. Let me explain
the process. A lawsuit is commenced by the
filing of a complaint. When the complaint is
filed, the clerk stamps a date on it, returns a
stamped copy to the plaintiff, and then puts the
complaint in the file, never to be seen again.
The defendant reads the complaint to file an
answer, and the answer follows the same process.
No one at court reads the complaint or the answer.
Even if the case goes all the way to trial, no one
at the court will ever read the complaint or
answer, UNLESS those documents are somehow put in
dispute by the parties.

Let's use our
Man from Mars complaint to show just how far this
goes. You are sued by someone for infliction
of emotional distress because, according to the
complaint, you are a Martian and you are attacking
him in his dreams. You want to get the judge
to take a look at the complaint, so you file what
is called a "demurrer," which states that the
complaint fails to state a cause of action.
The judge will then look at the complaint, because
you forced him or her to do so. But even
then, the judge MUST assume that all the
allegations in the complaint are true. So,
the complaint says you are a Martian, and you have
mental powers you are using to attack him.
Taking those facts as true, then the plaintiff has
properly stated a cause of action for infliction of
emotional distress, and you will be ordered to
answer the complaint.

Why is such
an absurd result permitted? The reason is
that cases must be decided by the EVIDENCE.
Again, let's use our crazy facts to illustrate the
point. This time, we'll make you the
plaintiff. You were happily living your life in your
home, but a Martian really did move in next door
and he really is attacking you in your dreams.
Do you want the judge to have the power to throw
out a complaint based only on his own beliefs or
understanding of the facts? How will we ever
stop the evil, mind-controlling Martians if every judge throws out any
complaint involving extraterrestrials? OK,
the Martian example is extreme, and the truth is
you probably could get the judge to take judicial
notice that no Martians have ever visited Earth and
dispose of the case by way of demurrer. But what
about cases that are not so extreme? What if
you are suing because you tripped on a crack in a
sidewalk that was not properly maintained? Should the judge be able to throw
out your complaint, because he doesn't remember
seeing a crack the last time he walked on that
sidewalk, or because he believes that no one is
clumsy enough to trip on a crack? Don't you
want the opportunity to present your evidence
before the judge decides the merits of your
case?

Bottom line.
When you are being sued for what you think is a
frivolous reason, it gets very frustrating that you
must go through the process for a period of time
before you can force the judge to examine the facts
and evidence
by, say, a motion for summary judgment. But
that is the price you pay for the day that you
become the plaintiff and don't want your case
thrown out on the whim of a judge who has never
seen your evidence. No one is better than
Morris & Stone at disposing of frivolous cases, but
even we must use the process.

I need to file a complaint
or answer in Orange County Superior Court, but can't afford the filing fee. Can I get it waived?

Yes, and the Orange County Superior Court is fairly generous in granting such requests, if your financial circumstances so warrant.
Here is the packet you need to complete.
The packet is daunting, but if you have more time
than money it's an option.

I am owed money by the defendant, but I know he doesn't have any assets. Is there any point in suing him?

That is a personal decision depending on your circumstances, but here are some things to consider. That deadbeat defendant may not have anything now, but do you think his situation could change in the next 20 years? A judgment is good for 10 years, and can be renewed for another ten years. I find that the defendants who think they are judgment proof are the ones that either don't bother to show up to defend against the case or if they do, they don't fight very vigorously. You could end up with a judgment at very little time or expense. Then keep it in your safe, and
every year or so, check to see what is going on with Mr. No Assets. There's no hurry. Your judgment earns interest at 10% annually. That's one of the best investments going. Once you receive a judgment, you can record what is called an Abstract of Judgment in any and all counties you think the defendant may now or some day in the future own real estate. That abstract puts a lien on the property even if you don't know what property he owns (assuming it is in his name, of course). During the latest housing boom, we collected a number of old debts for clients because the houses appreciated, the
judgment debtors wanted to sell or refinance, and they had to come to us to get a release from the lien.
I just got served with a complaint. The case is set for Orange County Superior Court. Is there anything special I need to know or do?
Fortunately, the Superior Courts are now governed by a set of uniform rules. At one time, every courthouse had its own rules, as did each judge within the courthouse. It could be a nightmare trying to figure out the rules. Now there is a set of rules that apply to every court, and no jurisdiction is supposed to deviate from those rules without obtaining a waiver from the State. Courts and judges can, however, create there own rules so long as they don't conflict with one of the standard rules. And some judges just ignore the law and make their own rules anyway, so you still need to ask questions.
Even if the judge doesn't have his or her own rules, he or she will have a way they like to handle things. Stop by the courtroom at some point when court is not in session, and ask the court clerk if the judge has any printed procedures.

The very first thing you should do upon receiving a complaint is to retain the services of Morris & Stone, of course. (714) 954-0700. But if you are going it alone, the very first thing you must do is to determine which judge is assigned to the case. In the old days, you were not assigned a specific judge, and the courts would have some judges that listened to motions, others that considered preliminary injunctions, etc. Every time you went to court, you ended up with a different judge who knew nothing about your case from all the prior visits. It was a phenomenally bad system that only the government
could come up with. Now you are assigned to a single judge. When the complaint is filed with the clerk at the courthouse, they actually spin a bingo ball kind of contraption with the judges names on the balls, and pull out a name, and stamp that name on the front of the complaint, right below the case number. This makes sure the assignment is completely random. Every unrepresented defendant that has ever gone to court is absolutely convinced that the other side some how managed to get his friend the judge assigned to the case, but it doesn't happen.

So, look at the complaint and see which judge is assigned to the case. We are blessed with a very good panel of judges at Orange County Superior Court as compared to other counties, but that doesn't mean there are not some clinkers. Attorneys that practice at that court know who the clinkers are, so you should call one and ask about your assigned judge. (714) 954-0700. If you got one that is not so great, you can file a simple form that rejects that judge (called "papering the judge"). You only have ten days to file the form. You can do so only once, so you always run the risk that you will just be
assigned to another not so great judge. Unless the judge has a really bad reputation, it is best not to waste your one challenge. If your case ever goes to trial, the odds are that you will not be in front of the judge that has had your case from the beginning. The courts intentionally overbook the trial dates, because so many cases settle on the eve of trial (trial is a real motivator). When your case is assigned a trial date, there will typically be six or more other cases assigned to the same judge on the same day. Of those seven cases, four will be settled or continued. That leaves three cases
ready to go to trial. The court clerk will call Master Calendar and ask for a courtroom. You and the other parties will then wait in the hall, sometimes for days, waiting for a courtroom. When you are finally assigned to a new judge, if you haven't used your challenge, you can still use it. "But I thought I only had ten days." You do -- that judge was just assigned.

One rule that is specific to Orange County Superior Court is local rule
317 (formerly Rule 450). This rule requires the parties to meet and confer at least ten day prior to trial in order to reach agreement on certain items (if possible) such as he statement of the case and the stipulated facts. Rule
317 also requires the parties to exchange trial exhibits prior to trial. Some judges are very strict on this rule, and we have been successful in excluding all of the opposition's trial exhibits based on their failure to exchange them prior to trial.

I was served with a summons and complaint, and the summons says that I need to file an answer within 30 days. What does an answer look like? Is it something I can just pick up at the Orange County Superior Court?

You can get a form answer at the Orange County Superior Court, fill it out and file it, but that's usually not a good idea.

Here's how pleading works. The plaintiff is supposed to serve and file a complaint that sets forth sufficient facts so that you know what you are being sued for. The complaint sets the parameters for the action. If the complaint says you owe plaintiff money because you borrowed money and didn't pay it back, he can't spring on you at trial that you also stole money from him. The plaintiff is bound by the complaint.

And so it is with the answer. You must set forth the defenses you will rely on in defending against the complaint. If it's not in your answer, you may be barred from using that defense at trial. Wouldn't it be ashamed if you ended up paying money you did not owe, just because you left some magic words out of your answer?

I know that I am required to answer the complaint. Can I just send a letter to the judge explaining what happened?

An answer is a specific type of document, and a letter does not qualify. A judge is not permitted to read any letter that you send, because that would be what is called an ex parte communication. A judge is never supposed to talk to one side without the other side being present. A possible exception is Small Claims Court. Since that is designed to be layperson friendly, a judge will read the letter to see if you are asking for an extension.

What do I
say in the answer? Is that where I tell my
side of the story? Can I just use the
"check-the-box" form I found on line?

Here is the
way it is supposed to work. The
plaintiff files a complaint which is supposed to
contain enough facts so that the defendant can
properly know of what he or she is being accused.
If a complaint just said, "defendant injured me,"
that would not be sufficient. The defendant
would not know whether he is being accused of
assaulting the plaintiff, or perhaps was involved
in an auto accident with the plaintiff. The
complaint needs more facts.

Similarly, an
answer is supposed to contain sufficient facts so
that the plaintiff will know the basis upon which
the defendant is denying the allegations of the
complaint. But for some reason no one does it
that way. Most defendants will simply file
what is called a "general denial," claiming that
all the allegations of the complaint are false.
This is a legal fiction, because even the defendant
will admit that some of the allegations are
true, such as the county where he resides.

If a
plaintiff really wants to force the defendant to
file a more meaningful answer, he can file a
verified complaint. With a verified
complaint, the plaintiff states under penalty of
perjury that all of the allegations are true.
The defendant, under most circumstances, must then
file a verified answer, either admitting or denying
each of the allegations in the complaint.
Generally it is considered a bad idea to file a
verified complaint unless a particular cause of
action requires it, because as you conduct
discovery in a case, your understanding of the
facts might change.

As to the
check-the-box answer you can get from the court,
utilizing that form can be a really bad idea.
The answer must also contain any "affirmative
defenses" upon which the defendant intends to rely.
A general denial puts in dispute any allegations
that are specifically refuted by that denial.
In other words, if plaintiff alleges you owe him
$100,000, your general denial will be sufficient to
allege that you don't owe him $100,000
(although some attorneys will argue that does not
deny that you owe him $99,999). But any
defense that goes beyond a direct denial requires
an affirmative defense. This is sometimes
called the "yes, but" test. In other words,
if in response to an allegation in the complaint,
your response is, "yes, that allegation is true,
but . . .," then a general denial does not properly
refute that allegation.

There are
many affirmative defenses that must be set forth in
the answer or they are waived (although the
court might give you permission to amend the answer
to add a defense). In other words, you could
go to trial and lose because you can't rely on a
defense that would have defeated the claim.
One of the best examples of this is the statute of
limitations. Take an oral contract.
Under the statute of limitations, an action on an
oral contract must be brought within two years of
the breach. Defendant sues you three years
after the breach, and you file an answer with no
affirmative defense for the statute of limitations.
If you had alleged that affirmative defense, you
could have won the case by simply proving that the
breach occurred more than two years before the
complaint was filed. Without that defense,
the judge will not permit you to rely on that
defense (because you did not put plaintiff on
notice that was your intention), and you will need
to find some other reason that you are not
responsible for the debt.

I want to include a claim for punitive damages in my complaint. How much should I ask for?

Many amateur attorneys used to play the game of asking for $10 billion as punitive damages, thinking the amount was so shocking that it would somehow intimidate the other side. Sometimes it would even generate press coverage. After all, someone being sued for $10 billion in Orange County Superior Court must have done something really bad, right? In response, the California Legislature passed a law making it improper to allege an amount of punitive damages. You must still ask for punitive
damages in your complaint if there is a basis for recovery, but you may not set forth an amount. As satisfying as you might find it to ask for $100 trillion in punitive damages to show how outrageous the conduct of the defendant, all that will happen is the court will strike the allegation and possibly sanction you.

By the way, you cannot recover punitive damages in a breach of contract action.

Should I sue everyone that might be responsible for my damages? Can't I just dismiss if I'm wrong?

Another common mistake made by people representing themselves, as well as amateur attorneys, is to sue everyone they can think of, and throw in every conceivable cause of action. The thought is that even if someone is named as a defendant that shouldn't have been, the action can always be dismissed as to that defendant. Unscrupulous attorneys will try to settle with the improperly named defendants, offering to dismiss the action for, say, five or ten thousand dollars. This is common in construction defect cases, where the plaintiff's attorney will name every subcontractor.
Even if the claimed defect is soil subsidence, they'll name the guy that installed the air conditioning.

Naming too many defendants and "over-pleading" (listing too many claims) are both bad strategies if the attorney on the other side knows what he or she is doing. For example, let's assume my client is a construction corporation that bought some building materials from you, but due to a downturn in the housing market is unable to pay you when due. You go to an attorney who properly sues the corporation, but then thinking it will apply a little more pressure, he also sues my client as in individual, even though it was the corporation that bought the materials. For even more
pressure, the attorney also sues for fraud, not just breach of contract. By suing for fraud, you could recover punitive damages, so that make the action much scarier for my client, or so your attorney thinks.

Big, big mistake. I will immediately bring a motion to dispose of the action. Once filed, any dismissal will be viewed as a response to my motion, meaning that my client has prevailed on the merits. Even if I allow the case to go to trial, assuming there is no defense to the money owed, you will prevail only on the breach of contract action against the corporation. My individual client, on the other hand, will prevail on the breach of contract cause of action, and he and the
corporation will both prevail on the fraud cause of action. To prove fraud, you must show that the defendants had no intention to perform. Failing to pay because of a downturn in the market does not evidence an intent to defraud, only an inability to pay.

Even though you won on one cause of action, my clients prevailed on three. That makes them the prevailing parties. They will recover all attorney fees and costs, assuming there was a basis for attorney fees, and that total may well exceed the amount you recover for breach of contract. If there is no basis to recover attorney fees directly, no problem, we then just sue for malicious prosecution and recover them that way. All because your attorney named too many defendants and causes of action.

It's a balancing act when you draft a complaint, because you do want to allege all appropriate causes of action in case one gets thrown out, against all the appropriate defendants, but as you can see it can be perilous to over-plead. Be sure to consult a competent attorney.

What is the difference between mediation and arbitration?

Mediation - A process in which a neutral third person meets with the parties to a dispute in order to assist them in formulating a voluntary solution to the dispute.

Arbitration - Using a neutral third person to resolve a dispute instead of going to court. The parties can agree whether the arbitration will be binding or non-binding.

As you see from the definition of mediation, the mediator assists the parties in formulating a voluntary solution to the dispute. We sometimes see agreements drafted by attorneys that call for "binding mediation." There is no such thing, since that implies that the parties will be bound by the decision of the mediator. The mediator doesn't make a decision; he only tries to get the parties to agree to a resolution. You could, theoretically, agree that a third party will have the absolute right to decide how the parties will resolve the case, but that is not
mediation.

Mediation is sometimes required by an agreement, but that just means that the parties must get together and try to work out their differences. In many standard real estate agreements, the parties are required to mediate the dispute before going to court. Sadly, we have seen a number of cases where the attorney ran to court and filed a complaint without reviewing the agreement closely enough to see the mediation requirement. By the terms of the agreement, that waives the recovery of all attorney fees. Even if a party is certain that mediation will be unsuccessful, it
is far better to spend an hour or two going through the process to preserve the right to recover attorney fees.

Arbitration is not mediation, although sometimes even arbitrators lose sight of this fact. An arbitration is an informal trial, and should follow the same rules of evidence. Many courts will order you to non-binding arbitration, hoping that will resolve the dispute. But what is to keep the loser from simply rejecting the arbitrator's decision if the arbitration is non-binding? Nothing, but who won and lost is not always so clear.

Say, for example, an employee is suing for wrongful termination, and thinks he is entitled to $400,000. He goes to the arbitration and wins, but the arbitrator finds that he failed to mitigate his loss of future wages, and awards only $75,000. The defendant employer might reject the award to avoid paying $75,000, but it might decide that is better than going to court and running the risk that the jury will award the full amount. The plaintiff employee might reject because he got far less than what he asked for, but he could also be educated by the process and realize that his
case wasn't the slam-dunk he thought it was.

I seldom reject the option to mediate a case. It provides an independent view of the case by an impartial third party. You either reach an agreement or you don't, and there is no downside. I've seen good mediators settle cases I never thought would settle. On the other hand, I seldom agree to non-binding arbitration unless the court orders me to go. If the case requires expert witnesses, you must pay them twice -- once for the arbitration and again at trial. Similarly, you must inconvenience your witnesses twice if the matter doesn't settle (although you can
under certain circumstances use declarations or deposition transcripts in lieu of live testimony).

The other side lied during the trial, and as a result the judge entered a judgment against me. Can I sue for perjury or defamation because of the lies?

You or your attorney should have assumed that the other side would lie and prepared your case in anticipation of that fact. And if you testified but the judge chose to believe the liar on the other side, what does that say about your perceived credibility? For whatever reason, the judge did not believe you, so why would a new trial, where you again claim that the other side is lying, come out any differently?

Anything said in court is absolutely privileged, meaning that you can't sue. Your remedy for a bad judgment is to appeal or bring a motion for a new trial. If parties could start new actions to address perceived grievances from other actions, the process would never end.

If you can convince the District Attorney that a witness lied on the stand, he or she can be criminally prosecuted for perjury. In the more than 20 years I've been practicing, I've seen that happen . . . never. But that doesn't mean that the system doesn't work. It's called an adversarial system for a reason. And if your case is presented properly, truth will prevail over lies.

I am owed $8,000 (or $9,000 or $10,000). I've talked to a few attorneys and they all tell me it would cost more to sue using an attorney than I could recover. Am I out of luck? Don't I get back the attorney fees if I win?

First the attorney fees. Generally you DON'T get back your attorney fees unless there is a contract that provides for attorney fees, or some special statute. If you are owed money pursuant to a contract or promissory note, look at the document to see if it provides that you can recover your attorney fees. By the way, attorney fees are always reciprocal, even if the contract says something different. For example, a promissory note may say that only the lender is entitled to recover attorney fees, but if the lender sues and you win, you would get your fees.

As Abe Lincoln said, "an attorney's time is his stock in trade." You may think that an attorney's time is free, but every hour the attorney spends on your case is an hour he or she is not being paid on another case. I sometimes get calls from prospective clients that want me to handle their $400 collection case. When I ask how they were anticipating paying an attorney to handle a $400 case, they tell me they thought I would work on a contingency basis, taking a percentage of the $400.

But some assume I could do the work, and then recover my usual hourly fees. The problem with that approach is that even when the contract provides for attorney fees, it is always "reasonable" attorney fees. When a judge is determining what is reasonable, he or she will always consider the result that was achieved. If an attorney runs up a bill of, say, $3,500 to collect $400, the judge may find that to be unreasonable and only award $1,000 in fees.

And so it is with your $8,000 claim. No experienced attorney will take a case in the hope of recovering his standard hourly fee, when he can earn that fee through paying clients. If you are willing to take that risk by paying the fees up front on the hope that you will recover them from the defendant, then you can probably find an attorney.

But even without an attorney, you can still pursue your claim. You can now sue for up to $7,500 in Small Claims Court. If your claim is for more than $7,500, you just waive the rest. So, pursuing an $8,000 claim in Small Claims Court means you are giving up $500 that you are owed, but that is far cheaper than what it would cost you to hire an attorney.

A business claims I owe them $450 and has dinged my credit, but I can prove I don't owe that money. I've called and written a million times, but they just ignore me. Can I sue?

You can sue for what is called declaratory relief, but that can only be done in Superior Court (not small claims), and it will cost you thousands of dollars if you hire an attorney. If you follow certain procedures and the business fails to comply with the Fair Debt Collection Practices Act, you can sue, but again that will cost you thousands of dollars.

These traditional approaches just are not very practical because of the amount involved. But here is my patented Small Claims Court procedure that can solve the problem for about $40, assuming it is a local business. Pay the amount under protest, and then sue to get it back. Small Claims Court is not a court of equity, it can only award damages. This means that you cannot go to Small Claims Court to declare that you do not owe the money. But you can accomplish the same thing by paying the money under protest and then suing to get it back. The judge will then
have to make the determination that you never owed the money.

Be forewarned, however. This approach is too sophisticated for some judges. With these judges, the conversation will go something like this:

"Your Honor, I'm seeking reimbursement of the $450 I paid to defendant under protest."

"But didn't you owe the money to defendant?"

"No, your Honor, that's the point. I never owed the money to the defendant, I only paid it under protest so that I could sue in Small Claims Court to get it back. Otherwise, there is no simple mechanism to have a court determine that the amount is not owed."

"Why would you pay the money if you didn't owe the money?"

"Because the defendant reported it as a unpaid debt to all the credit reporting agencies. I don't have the thousands of dollars it would take to sue in Superior Court to have the matter decided and clear up my credit reports, so by paying the money under protest and then suing to get it back, I will now have a judgment showing that I do not owe the defendant any money. I can then provide that judgment to the credit reporting agencies in order to remove this false information.
Or, if I challenge the information on my credit
reports and defendant continues to report that the
information is accurate, even after it was
determined in Small Claims Court that I never owed
the money, then I will have an outstanding case
against the debtor for violation of the Fair Debt
Collections Practices Act."

"So you paid the money to defendant, just so you could turn around and sue to get it back? That's the craziest thing I ever heard. Judgment for defendant,
and don't ever waste my time like that again."

All you can do is hope you don't get one of those judges.

How much can I sue for in each court?

In Orange County Superior Court, you have four basic ranges that dictate where you will file a civil action. Small Claims Court, a part of the Superior Court, handles claims up to $7,500. You can also sue in what is called limited jurisdiction Superior Court for any amount from $0 to $25,000. These were called Municipal Courts until a few years ago, when they were consolidated into the Superior Courts. Claims for $10,000 or less are handled a little differently, but by the same courts. Generally if the claim is less than $7,500 you would want to take advantage of the
faster and cheaper Small Claims Court, but there are times when you are not permitted to file your action there, such as when you have filed more the the number of claims you are permitted in a year, or when you want to be represented by an attorney (you cannot be represented in Small Claims Court). Claims of more than $25,000 are filed in Orange County Superior Court as "unlimited." Perfectly clear? Litigation is never easy.

Common Time
Frames in Unlimited Superior Court

While doing a web search, we came across a very
nice summary of a number of civil rules posted by
the Fresno Superior Court; better than what we have
seen on other sites. We do not attest to the
following information provided by that website, and
of course none of the information we provide can be
taken as legal advice, since we would need to be
retained to review your specific situation, but
this information provides some broad details that
might be useful and point you in the right
direction.

Service, Return of Summons

Serve all named defendants, and file proof of
service with the court, within 60 days from the
date the complaint is filed. (Local Rule 2.1.5.)

Answer

File an answer within 30 days after personal
service. (CCP §412.20(a)(3).)

Cross Complaint

Generally must be filed at the same time the
answer is filed, i.e., within 30 days after service
by personal service. (CCP §428.50(a).)

Motions

Generally must be served and filed at least 16
court days before hearing, with an additional 5
days’ notice given if served by mail within
California, an additional 10 days’ notice if served
outside of California, an additional 20 days’
notice if served outside the United States, or an
additional 2 calendar days’ notice if served by
facsimile or express mail. (CCP §1005(b).)

Papers opposing a motion or replying to an
opposition are to be served so that delivery is
ensured to be made to the other parties no later
than the close of the next business day. (CCP
§1005(c).) This time frame includes motions for
summary judgment/adjudication as well.

Proof of service of the moving papers must be
filed no later than 5 court days before the
hearing. (CRC 3.1300(c).)

Demurrer, Motion to Strike, Judgment on
the Pleadings

Within 30 days after service, unless extended by
stipulation or court order. (CCP §430.40(a);
435(b).)

Demurrer to the answer, within 10 days after
service of the answer. (CCP §430.40(b).)

Statutory motion for judgment on the pleadings
cannot be made after entry of a pretrial conference
order or 30 days before the initial trial date,
whichever is later. (CCP §438(e).)

Summary Judgment/Adjudication Motions

Must be served and filed at least 75 days before
hearing, extended by 5 days if served in
California, 10 days if served outside California,
and 20 days if served outside the United States.
(CCP §437c(a).)

Opposing papers must be served and filed not
less than 14 days before the hearing. (CCP
§437c(b)(3).)

Reply papers must be served and filed not less
than 5 days preceding the hearing. (CCP
§437c(b)(4).)

Discovery Motions

Motions to compel where no response at all to
interrogatories or document requests have been
served may be made at any time. (CCP §§2030(k),
2031(l).)

Motions to compel further responses to
interrogatories or document requests must be made
within 45 days after service of the response,
extended 5 days if served by mail in California;
otherwise, the propounding/demanding party waives
any right to compel a further response. (CCP
§§2030.00 (2)(c).)

A motion to compel answers to deposition
questions must be made no later than 60 days after
completion of the record of the deposition. (CCP
§2025.480 (b).)

Miscellaneous Motions

Motions for sanctions under CCP §128.7 cannot be
made until 51 days after service of the motion on
the party said to be in violation. (CCP §128.7.)

Motions for dismissal under the two-year
discretionary statute must be made at least 45 days
before the hearing. Opposition is due within 15
days after service of the notice of motion.
Response to the opposition is due within 15 days
after service of the opposition. A reply to the
response is due within 5 days after service of the
response. (CRC 3.1342.)

Motions for reconsideration must be made within
10 days after service of written notice of entry of
the order to be reconsidered. (CCP §1008(a).)

Defaults

What Judicial Council form must the
Plaintiff file to obtain DEFAULT against a
defendant who has failed to timely answer the
complaint?

CIV - 100 Request for Entry of
Default

What Judicial Council form must the
Plaintiff file to obtain DEFAULT JUDGMENT against a
defendant whose default has been entered?

The same form -- CIV - 100 --
is used, but the Applicant must be sure to check
the box in the caption indicating whether a Clerk’s
Judgment or Court Judgment is being sought. Failure
to check the appropriate box is a very common
error. In addition, the Applicant must either check
the box at ¶ 1 (d) or at ¶ 1 (e) indicating whether
a Clerk’s Judgment or Court Judgment is being
sought. (See also CRC 3.1800.)

Counsel should also file a Proposed
Judgment. (CRC 3.1800 (a)(6).)
It may be most convenient to use Judicial Council
form JUD-100. However, if a case
is particularly complex, involving multiple
defendants and significant amounts of overlapping
and non-overlapping damages, it may be preferable
for counsel to draft a Proposed Judgment tailored
to that specific case, which explains precisely how
damages are to be awarded and whether each of the
multiple defendants is solely liable, or jointly
and severally liable for each particular element of
the damages award.

Are there any relevant statutes the
Plaintiff should review before seeking entry of
default and default judgment?

Yes. CRC 3.1800 sets forth a
list of specific requirements, which the Applicant
must satisfy when seeking entry of default
judgment, on declarations. CCP 585.
CCP 586. Appendix A
to the Local Rules. And Civil Code
sections 1717 and 1717.5.

Must the Plaintiff include interest
calculations?

Yes. Please submit a declaration showing in
specific detail how the interest was calculated, so
that the court may verify the accuracy of the
calculation. (CRC 3.1800 (a)(3), 3.1802.)
Please show the applicable interest rate per annum,
the starting and ending dates for which interest
was calculated, and the total number of days for
which interest was calculated, the per diem rate of
interest, and the total interest. Failure to
include such calculations is a common oversight.

Must the Plaintiff complete the
Declaration of Mailing at ¶ 6 of the form CIV - 100
Request for Entry of Default?

Yes, this Declaration is required by CCP
587 when seeking entry of DEFAULT. Absent
filing of this declaration, the clerk may not enter
defendant’s default. The Declarant should remember
to sign the declaration, enter the date, and check
the appropriate box under paragraph 6. If
applicable Declarant should provide the last known
addresses for each of the defaulted defendants
under paragraph 6 (b).

Must the Plaintiff complete the
information at ¶ 2, ¶ 7, and ¶ 8 of the Request for
COURT JUDGMENT form, relating to damages, costs,
and fees; the memorandum of costs; and the
declaration of military status?

In what types of actions may the
Plaintiff obtain a DEFAULT JUDGMENT solely on
DECLARATIONS, without any hearing?

Under CCP 585 (a), Plaintiff
may seek DEFAULT JUDGMENT on DECLARATIONS in an
action arising upon contract or judgment for the
recovery of money damages, IF the defendant(s) have
NOT been served by publication.

In what types of default actions must
the Plaintiff set a LIVE HEARING to PRESENT
EVIDENCE OF DAMAGES?

In non-contract actions where the defendant(s)
have NOT been served by publication, the court must
hear evidence of Plaintiff’s damages. (CCP
585 (b).)

In all actions where the service of the summons
was by publication. (CCP 585 (c).)

In quiet title actions and in cases where the
defendant has been served by publication and is a
non-California resident. (CCP 764.010;
Winter v. Rice (1986) 176 Cal.App.3d 679,
683; CCP 585 (c).

Must the Plaintiff serve a Statement of
Damages?

If the action is one for personal injury or
wrongful death, a Statement of Damages must be
PERSONALLY SERVED on the defendant BEFORE entry of
default. (CCP 425.11 (c),
(d)(1).) Plaintiff should file the proof
of service with the court as soon as possible.

Must the Plaintiff serve a Statement of
Punitive Damages?

If the action seeks punitive damages under Civil
Code section 3294, a Statement of Punitive Damages
must be PERSONALLY SERVED on the defendant BEFORE
entry of default. (CCP 425.115 (f),
(g)(1).) Plaintiff should file the
proof of service with the court as soon as
possible.

Note that the Plaintiff may serve a single
document, which combines both the Statement of
Damages and the Statement of Punitive Damages. (CCP
425.11 (e); CCP 425.115 (e).)

In an action brought against multiple
defendants, as a general rule, may the Plaintiff
obtain default judgment against a single defendant,
where there are co-defendants whose defaults have
not been entered?

No. As a general rule, if a co-defendant has
answered and has raised defenses, which may
exonerate the defaulted defendant, then default
judgment is improper and may not be taken against
the defaulted defendant. (Adams
Manufacturing & Engineering Co. v. Coast Centerless
Grinding Co. (1960) 184 Cal.App.2d 649,
655; Mirabile v. Smith (1953) 119
Cal.App.2d 685, 689.)

May the Plaintiff obtain judgment on
claims that are not well-pleaded?

No. As a general rule, a defendant who defaults
only admits facts well-pleaded in the complaint. If
the complaint fails to state a cause of action, a
default judgment is erroneous and may be set aside
on appeal. (Molen v. Friedman
(1998) 64 Cal.App.4th 1149, 1153-1154.)

May the Plaintiff obtain a type of
relief or an amount of money damages not pleaded in
the complaint?

No. As a general rule, the court MAY NOT grant a
TYPE of relief that was NOT pleaded in the
complaint. (Marriage of Lippel
(1990) 51 Cal.3d 1160, 1166; CCP 580.)

Similarly, as a general rule, in actions for
money damages, the court MAY NOT grant damages in
an AMOUNT, which was not pleaded in the complaint.
(Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d
489, 493.)

Demurrers

What is a demurrer?

A demurrer is a pleading that challenges the
sufficiency of the complaint, cross-complaint or
answer. It raises issues of law, not fact.

Generally, a demurrer to a complaint or
cross-complaint asserts that, even if all the facts
alleged in the complaint or cross-complaint are
true, they do not state a claim the law recognizes;
that is, they do not state a claim for which the
court can grant relief. A demurrer may also assert
other deficiencies, for example, that the court
does not have jurisdiction of the claim asserted in
the complaint or cross-complaint, that the claim is
already before the court in another case, that the
proper parties have not been included in the case,
or that the responding party cannot understand what
is being alleged. (Code Civ. Proc. § 430.10.)

Generally, a demurrer to an answer asserts that,
even if all the facts alleged in the answer are
true, they do not constitute a defense to the
claims alleged in the complaint. It may also assert
that the answer cannot be understood. (Code Civ.
Proc. § 430.20.)

When must demurrers be filed?

The demurrer to a complaint or cross-complaint
must be filed and served within 30 days after
service of the complaint or cross-complaint. (Code
Civ. Proc. §§ 430.40(a), 432.10.) In unlawful
detainer actions, a demurrer to the complaint must
be filed and served within 5 days after service of
the complaint. (Code Civ. Proc. §§ 1167, 1170.)

A demurrer to an answer must be filed within 10
days after service of the answer. (Code Civ. Proc.
§§ 430.40(b).)

How and when must demurrer papers be
filed and served?

The demurrer papers must be filed and served at
least 16 days before the hearing, plus additional
days if the papers are served by mail, overnight
delivery or fax. (Code Civ. Proc. § 1005(b); Cal.
Rules of Court, rule 3.1320(c).)

Demurrers must be set for hearing not more than
35 days after the filing of the demurrer, or on the
first date available to the court thereafter. (Cal.
Rules of Court, rule 3.1320(d).)

What papers must be filed?

Notice of hearing

Demurrer

Memorandum of points and authorities

Request for judicial notice, if the demurrer
is based on matters of which the court may or
must take judicial notice.

The moving party must immediately notify the
court if the demurrer will not be heard on the
scheduled date. (Cal. Rules of Court, rule
3.1304(b).) Plaintiff may file a first amended
complaint while a demurrer to the original
complaint is pending; the first amended complaint
supersedes the original and renders the demurrer
moot. (Code Civ. Proc. § 472.) If a first amended
complaint is filed, the demurring party must notify
the court and take the demurrer off calendar.

(Note: Filing a second or subsequent amended
complaint without leave of court is not permitted
and does not require taking off calendar the
demurrer to the first or subsequent amended
complaint.)

Discovery

The following consists of very general
information concerning Discovery.
It is not all-inclusive and is meant to be a guide
only. Litigants representing themselves are still
encouraged to seek the advice of counsel.

What is discovery?

Discovery is the term used for obtaining
information that will help a litigant prosecute or
defend the action from other parties to the lawsuit
and in some instances, from persons and entities
that are not parties to the lawsuit.

How do I obtain this information?

By propounding (picking and choosing from among
pre-formatted questions or forming your own) and
serving form interrogatories, specially prepared
interrogatories, requests for admissions,
inspection demands and notice of depositions.
Various types of form interrogatories, requests for
admissions, inspection demands and notices of
depositions can be obtained from the Book of
Judicial Council Forms or books of discovery forms
available from legal publishing companies. The
rules for discovery and for each different
type of discovery are set forth in the
Code of Civil Procedure § 2016 et seq.

Time limits for discovery in general

Generally, a case must be pending
before discovery can begin. See CCP § 2017.
Plaintiffs must obtain a court order based upon a
showing of "good cause" to begin discovery during
the first 10 days (20 days for a deposition) after
a defendant is served with the summons or has
appeared in the action (in most cases by filing an
Answer.) No such "waiting period" applies to
defendants. The right to discovery (seek more
information) is "cut-off" 30 days before trial. A
motion concerning discovery must be heard by the
Court at least 15 days before trial. If the trial
date is continued, this does not mean that the
"cut-off" dates concerning discovery are continued
as well. See CCP § 2024. Unless permission is
obtained from the Court, the discovery "cut-off"
dates are calculated from the initial trial date.

Limits on discovery

CCP § 2017.010 states that the information
sought must be (1) "not privileged", (2) "relevant
to the subject matter of the action", and (3)
either admissible or "reasonably calculated to lead
to the discovery of admissible evidence." There are
many categories of information that are protected
by statute or by the constitutional right of
privacy from discovery. It is advisable to consult
a treatise concerning the scope of discovery.

IF YOU ARE REPRESENTING YOURSELF SEVERE
CONSEQUENCES CAN RESULT FROM A FAILURE TO RESPOND
TO DISCOVERY SERVED UPON YOU BY THE OTHER PARTIES
TO THE LAWSUIT. If you are the plaintiff,
your lawsuit can be dismissed. If you are a
defendant, default can be entered. See CCP § 2023.
To reiterate, it is advisable to consult with an
attorney if you wish to sue or if you are sued.

Motions to compel

In general, two types of motions to compel are
commonly filed. A motion to compel initial
responses is addressed to one or more of the
following types of discovery: form interrogatories,
specially drafted interrogatories, inspection
demands (not "requests for production"), and
requests for admission. The governing statutes are
CCP §§ 2030.290, 2031.300 and 2033.280
respectively. (CCP § 2030 applies to both form and
specially drafted interrogatories.) This type of
motion is filed when a party fails to serve a
verified response. Verification means that the
party providing the responses (answers) states
under penalty of perjury of the laws of the State
of California that the responses are true and
correct. See CCP § 2015.5. The qualification
"verified" is used because an unverified response
is tantamount to no response at all. See Appleton
v. Sup. Ct. (Cook) (1988) 206 Cal.App.3d 632, 636.
Responses are served on the attorney for the
opposing party or the opposing party if it is
representing itself. They are not filed with the
Court. See CCP §§ 2030.280, 2031.290 and 2033.270.
Failure to respond timely results in a waiver of
objections (subject to a few exceptions not dealt
with here). See CCP § 2030.290, 2031.300 and
2033.280.

A motion to compel initial responses to requests
for admission is a special type of motion. Failure
to respond before the hearing on the motion to
compel means that all of the "matters" (facts) set
forth in the requests for admission are deemed
established as true. See CCP § 2033.280. For
example, one party requests (asks) the other party
to admit that he or she "ran the red light". No
response is served. At the hearing, the Court will
deem the fact as established--the party did "run
the red light". Moreover, sanctions are mandatory
for failure to respond to requests for admission.
See Appleton v. Sup. Ct. (Cook) (1988) 206
Cal.App.3d 632, 636.

The second type of motion is a motion to compel
further responses. It is also addressed to one or
more of the following types of discovery: form
interrogatories, specially drafted interrogatories,
inspection demands (not "requests for production"),
and requests for admission. The governing statutes
are CCP §§ 2030.300, 2031.310 and 2033.290
respectively. This type of motion is filed when the
party that propounded the questions is not
satisfied with the responses received. All of the
statutes governing motions to compel further
responses require a "meet and confer in good faith"
effort to resolve the dispute prior to filing the
motion. All of the statutes also require that the
motion to compel be served within 45 days of
service of the unsatisfactory responses (plus five
days extension of time if responses served by
mail). The only exception requires a written
agreement between the parties involved extending
time to file the motion. The deadline has been held
to be "quasi-jurisdictional"--court cannot rule on
motion filed beyond 45-day limit or without written
agreement extending time. See Vidal Sassoon, Inc.
v. Sup.Ct. (1983) 147 Cal.App. 3d 681; Sperber v.
Robinson (1994) 26 Cal.App.4th 736, 745 and Sexton
v. Sup. Ct. (Mullikin Med. Ctr.) (1997) 58
Cal.App.4th 1403, 1410. See also Standon Co., Inc.
v. Sup.Ct. (Kim) (1990) 225 Cal.App.3d 898, 903.

There are common mistakes regarding motions to
compel initial and further responses to inspection
demands. First, a motion to compel initial
responses to inspection demands seeks a written
response within the parameters of CCP § 2031.240.
Producing documents in lieu of serving a written
response is not compliance. See CCP § 2031.240 and
2031.260. Second, if in the written responses, the
other party agreed to produce the documents for
inspection and copying and then that party fails to
produce, the remedy is a motion to compel
compliance "as agreed upon". It is governed by CCP
§ 2031.320. It does not fall within the parameters
of subsection (m). Third, any motion to compel
further responses to inspection demands must show
"good cause" for inspection. See CCP § 2031.310.
This showing requires the moving party to set forth
specific facts addressing the need to inspect the
particular documents in dispute. It is insufficient
to state that they need to be reviewed for context
or similar reason. See Fireman’s Fund Ins. Co. v.
Sup. Ct. (Paine Webber Real Estate Securities)
(1991) 233 Cal.App.3d 1138.

There are also various types of motions
governing other means of discovery--depositions,
physical examinations, mental examinations, expert
witness designation, etc. These are more
complicated motions and are not dealt with here.

Ex Parte

When is an "Ex Parte" application
appropriate?

An ex parte application for a court order, being
an exception to the general requirement of serving
a regularly noticed motion under CCP 1005, is
permitted only in limited circumstances. In every
case, the application must make the necessary
"affirmative factual showing" to support the
particular relief being obtained on an ex parte
basis [See, CRC Rule 3.1202c].

Ex parte relief is most frequently sought in
situations where there is a pressing need for
immediate relief such that waiting to hear the
matter on regularly noticed motion would cause
prejudice or harm. However, to obtain ex parte
relief on this basis, the party must make an
affirmative showing to justify the departure from
the standard noticed motion procedure set forth at
CCP 1005. An example of this type of ex parte
request is an application for an order shortening
time to serve notice of an urgently needed motion.
An application for an order shortening time must be
supported by a declaration that makes an adequate
showing of "good cause" for such relief. [CRC Rule
3.1300(b)]. Another example of this sort is an
application for an ex parte writ of attachment,
temporary restraining order or other provisional
remedy needed on an urgent basis. Whenever
provisional remedies are sought, the application
must show full compliance with all requirements of
the applicable statute or other law authorizing
such provisional relief on an ex parte basis.

Of course, ex parte relief may be sought in many
other circumstances, and only the most common
situations have been enumerated here. Other
examples of when ex parte relief may be appropriate
include (but are not limited to) certain
preliminary matters in which no adverse party is
affected by the relief (e.g., applications to
appoint a guardian ad litem or for service by
publication), and where applicable law specifically
permits the relief to be obtained on an ex parte
basis (e.g., CRC Rule 3.1320(h) [request for
dismissal for failure to amend after demurrer
sustained]).

How to obtain a hearing date and file
papers

Parties making ex parte applications shall
obtain a date and time for the hearing of the
application from the Clerk (Civil Calendar
Division). The court requests that the party
seeking an ex parte order submit the application
and all supporting papers and fees to the Clerk (in
Room 401 at main courthouse) for filing not later
than 9:00 on the date of the hearing. (See, Fresno
County Superior Court, Local Rule 2.7).

CRC Rule 3.1200-3.1207 notice and other
procedural requirements

Parties seeking ex parte relief must comply with
all statutes, rules and case law applicable to the
specific relief being sought. For example, if a
provisional remedy such as a temporary restraining
order, writ of attachment, etc., is sought, the
party must show full compliance with the particular
statutes and other laws applicable to such
provisional remedy. In addition, Rule 3.1200 to
3.1207 of the California Rules of Court sets forth
a number of mandatory rules relating to all ex
parte applications. Applications for ex parte
orders failing to comply with Rule 3.1200 to 3.1207
will be rejected. Here are a few of the essential
requirements of Rule 3.1200 to 3.1207 which parties
often fail to comply with:

Time of Notice. A party seeking an
ex parte order must notify all parties no later
than 10:00 a.m. the court day before the ex parte
appearance, absent a showing of exceptional
circumstances that justify a shorter time for
notice. (CRC Rule 3.1203). If the party believes
that notice to the opposing party should not be
required, the reasons must be clearly specified.
(CRC Rule 3.1204(b)(3)).

Contents of Notice. When notice of
an ex parte application is given, the person
giving notice must state with specificity the
nature of the relief to be requested and the
date, time, and place for the presentation of the
application, and must attempt to determine
whether the opposing party will appear to oppose
the application. (CRC Rule 31204(a)).

Contents of Declaration. An ex parte
application for an order must be accompanied by a
declaration showing that the notice requirements
under Rule 312 et seq. have been fully complied
with. (CRC Rule 3.1201, 3.1203 and 3.1204). The
declaration regarding notice must include the
following: (1) the notice given, including the
date, time, manner, and name of the party
informed, the relief sought, any response, and
whether opposition is expected; or (2) why notice
should not be required; or (3) if notice was
provided later than 10:00 a.m. the court day
before the ex parte appearance, the exceptional
circumstances that justify the shorter notice. (CRC
Rule 3.1203(a)).

Affirmative Factual Showing
Required. An application must make an affirmative
factual showing in a declaration containing
competent testimony based on personal knowledge
of irreparable harm, immediate danger, or any
other statutory basis for granting relief ex
parte. (CRC Rule 3.1202(c)).

Service of Papers. Parties appearing
at the ex parte hearing must serve the ex parte
application or any written opposition on all
other appearing parties at the first reasonable
opportunity. Absent exceptional circumstances, no
hearing may be conducted unless such service has
been made. (CRC Rule 3.1206).

Order shortening time

When a party applies to the court for an ex
parte order to shorten the time for filing and
service of notice of motion (See, CCP 1005), the
request must be adequately supported by a
declaration showing "good cause" to justify the
relief. (CRC Rule 3.1300(b)). Failure to show "good
cause" is one of the most frequent grounds for
denial of such ex parte applications.

Summary Judgment Motions

When should I serve a motion for summary
judgment/adjudication?

Motions for summary judgment/adjudication may be
served at any time after 60 days have elapsed since
the general appearance of the party against whom
the motion is directed. (CCP § 437c(a).) Also, the
motion must be served at least 75 days before the
hearing date, increased by 5 days if service is by
mail if the address is within California, 10 days
if the address is outside California but within the
United States, and 20 days if the address is
outside the United States. (Ibid.) The court does
not have jurisdiction to hear motions that are not
served in a timely manner.

When should I serve and file opposition?

Any opposition must be served and filed at least
14 days before the hearing date, unless the court
for good cause orders otherwise. (CCP § 437c(b)(2).

When should I serve and file the reply?

The reply must be served and filed at least 5
days before the hearing date, unless the court for
good cause orders otherwise. (CCP § 437c(b)(4).)

Can I obtain an order shortening time
for service on a motion for summary
judgment/adjudication?

No. The court does not have the authority to
shorten the time for notice of a summary judgment
motion. (McMahon v. Superior Court (2003) 106
Cal.App.4th 112, 118.)

Can I file a joinder to another party's
motion for summary judgment/adjudication?

No. A joinder to summary judgment motion that
does not contain its own notice of motion and
separate statement of undisputed facts does not
constitute a valid summary judgment motion, and the
court cannot grant summary judgment based upon such
a joinder. (Village Nurseries, L.P. v. Greenbaum
(2002) 101 Cal.App.4th 26, 47.)

What constitutes a valid separate
statement?

The separate statement must separately identify
each cause of action, claim, issue of duty, or
affirmative defense, and each supporting material
fact claimed to be without dispute with respect to
the cause of action, claim, issue of duty, or
affirmative defense. (CRC 3.1350.) The statement
must be in a two-column format, with the undisputed
material facts in numerical sequence in the first
column and the evidence that establishes those
undisputed facts in the second column. (Ibid.)
Citation to the evidence in support of each
material fact must include reference to the
exhibit, title, page, and line numbers. (Ibid.)

What constitutes a valid opposing
separate statement?

The opposing separate statement must set out
verbatim on the left side of the page the facts
claimed by the moving party to be undisputed. (CRC
3.1350(f).) Below the asserted undisputed facts,
the statement must set forth the evidence said to
establish that fact, complete with the moving
party’s references to exhibits. (Ibid.) On the
right side of the page, directly opposite the
recitation of the moving party’s statement of
material facts and supporting evidence, the
response must unequivocally state whether that fact
is "disputed" or "undisputed". (Ibid.) If the
opposing party contends there is a dispute, the
party must state on the right side of the page,
directly opposite the fact in dispute, the nature
of the dispute and describe the evidence that
supports the position that the fact is controverted.
(Ibid.) That evidence must be supported by citation
to exhibit, title, page, and line numbers in the
evidence submitted. (Ibid.)

May I obtain summary adjudication when
the notice of motion specifies only a request for
summary judgment?

No. The notice of motion must specifically
request that the moving party seeks summary
adjudication in the alternative to summary judgment
in order for the court to grant summary
adjudication of individual claims, causes of
action, or issues. (Homestead Savings v. Superior
Court (Dividend Development Corp.) (1986) 179
Cal.App.3d 494, 498.) Otherwise, if there is a
single triable issue as to any material fact, the
court must deny the entire motion for summary
judgment. (Ibid.)

How long can my points and authorities
brief be?

The points and authorities in support of or in
opposition to a motion for summary
judgment/adjudication must be no more than 20 pages
long, unless the moving party obtains leave of
court. (CRC 3.1113(d).) The 20-page limit does not
include exhibits, declarations, attachments, the
table of contents, the table of authorities, or the
proof of service. (Ibid.) The moving party may
apply to the court ex parte to file a longer
memorandum. (CRC 3.1113(e).) However, the party
must file the application at least 24 hours before
the brief is due, it must give the other parties
written notice, and the application must state
reasons for the additional pages. (Ibid.)

Can an attorney file a declaration in
support of or in opposition to a motion for summary
judgment/adjudication?

Normally, an attorney’s declaration is only
sufficient if the facts stated are matters of which
the attorney would be presumed to have personal
knowledge, in other words, matters occurring during
the course of the lawsuit. Otherwise, the
declaration is generally inadmissible for lack of
personal knowledge. (Maltby v. Shook (1955) 131
Cal.App.2d 349, 351-352.)

May I submit new evidence in my reply?

Generally speaking, no. New evidence may
accompany the reply only in "the exceptional case."
(Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349,
362, fn. 8.) If the moving party submits new
evidence with the reply, the opposing party is
entitled to notice and an opportunity to respond to
the new material. (Ibid.)

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